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Nova Law ReviewVolume 5, Issue 2 1981 Article 2

Reflections About The United States SupremeCourt

Arthur J. Goldberg∗

∗

Copyright c©1981 by the authors. Nova Law Review is produced by The Berkeley ElectronicPress (bepress). https://nsuworks.nova.edu/nlr

Reflections About The United States SupremeCourt

Arthur J. Goldberg

Abstract

The widely publicized book The Brethren1 has not, in any substantive sense, contributed toan understanding of the role of the Supreme Court.

KEYWORDS: brethren, court, gossip

Reflections About The United States Supreme Court

Arthur J. Goldberg*

The widely publicized book The Brethren1 has not, in any substan-tive sense, contributed to an understanding of the role of the SupremeCourt. The Brethren, after all, is essentially a gossip book about theJustices. Of course, we all like gossip and engage in it. But gossip doesnot answer basic questions about the Supreme Court.

Indeed it may be that The Brethren's single contribution to an un-derstanding of the Supreme Court is its emphasis that the Justices arehuman. If this is the case one may well comment, "So What's New?"

I propose to discuss what is myth and what is reality about theCourt's decision making process.

The very first myth which apparently must be laid to rest in everygeneration is that the Court has usurped the function of passing uponthe constitutionality of state and federal laws and action. This myth,always revived during times of storm over the Court, has no solid basisin history. Chief Justice John Marshall did not write on a clean slate inasserting in Marbury v. Madison2 the right and duty of the Court todeclare void an act of Congress contravening the Constitution. His ac-tion was forecast in the debates in the Constitutional Convention andurged by proponents as one of the solid reasons for the Constitution'sadoption. Professor Charles L. Black, Jr., in his excellent book, ThePeople and the Court,$ has summarized the historical evidence. It sup-ports his conclusion that "It seems very clear that the preponderance ofthe evidence lies on the side of judicial review."4 And the very firstCongress, composed of men whose memories of the making of the Con-

* Former Justice of the United States Supreme Court and Distinguished VisitingProfessor of Constitutional Law at Nova University Center for the Study of Law, Fall1980.

1. B. WOODWARD & S. ARMSTRONG, THE BRETHREN (1979).2. 5 U.S. (1 Cranch) 137 (1803).3. C.L. BLACK, THE PEOPLE AND THE COURT (1960).4. Id. at 23.

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stitution were fresh, enacted the Judiciary Act of 1789, 5 which, fromthat date to this, has expressly authorized the Court to review the con-stitutionality of state legislation. This enactment was shortly followedby a succession of laws providing for the Court's ultimate review ofjudgments of the lower federal courts. 6

Thus the reality rather than the myth about the Court is that itexercises judicial review as a consequence of intent as well as tradition.Judicial review is not a usurped power, but a part of the grand designto ensure the supremacy of the Constitution as law, supreme law towhich all branches of government -- executive, legislative and judicial,state and federal - are subject. This is what the Constitution clearlyimports.

The next great myth is that, even though judicial review was in-tended and is sanctioned, it is nevertheless undemocratic and thattherefore it is to be regarded with alert suspicion and its exercise to bedimly viewed. The argument has an obvious, albeit superficial, appeal.The Justices are appointed for life7 and not elected by the people forlimited terms, as the President and Congress are. The latter, so theargument goes, being representative of the popular will, should havetheir way; otherwise, democracy will be forsaken; a guardianship, how-ever benevolent, negates popular government.

This reasoning, however, overlooks the first facts about our Consti-tution: that its source is the people. It is the people who mandated thatthe individual be protected and safeguarded in his constitutional rightseven against the popular will of the moment, as voiced by the legisla-ture, the executive, or even public opinion polls. In large part, ourcourts were entrusted with the responsibility of judicial review to pro-tect individuals and minorities in their fundamental rights againstabridgment by both government and majorities.

It is not a denial, therefore, but rather a supreme manifestation ofdemocracy that the fundamental rights of the least among us are pro-tected from government or transient majorities by the Constitution andsafeguarded by an independent judiciary. History teaches that democ-

5. Judiciary Act of 1789, Ch. 20, 1 Stat. 73 (1789).6. Circuit Court Act of 1801, Ch. 4, 2 Stat. 89 (1801) (repealed 1802); Act of

March 3, 1803, Ch. 40, 2 Stat. 244 (1803).7. U.S. CONST. art. II, § 2, cl. 2 read in conjunction with U.S. CONST. art. III, §

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racy and an independent judiciary are one and inseparable. A countrywhere judges are faithful to the popular will, to the executive, or to thelegislature, rather than to the rule of law, will not be a democraticcountry worthy of the name.

Another myth disseminated about the Court is that the Courtreaches out and determines troublesome cases that would be bestavoided. It enters, so it has been said at times, into thickets of contro-versy. The reality is that the cases which the Court decides are pressedupon it. It does not seek out cases or invite their filing. Under our Con-stitution it issues no advisory opinions8 - it decides only actual casesand controversies.9 These must be genuine and current; otherwise, ju-risdiction will be summarily declined.

But what of cases seeking protection of political rights - shouldnot the Court have shunned them? The answer to this is that most ofthe cases before the Court deal with public issues of the first momentin our society - issues like reapportionment - commonly called politi-cal. As de Tocqueville said, "scarcely any political question arises inthe United States that is not resolved, sooner or later, into a judicialquestion." 10

My former colleague Justice Brennan accurately observed inBaker v. Carr - the germinal decision of the reapportionment cases -that "the mere fact that the suit seeks protection of a political rightdoes not mean it presents a political question. Such an objection is littlemore than a play upon words."11 If a claim is justiciable, there is noescaping the responsibility of decision just because the constitutionalright asserted is a political one.

Whatever the justification in another age or time for seeking outways of avoiding decisions on the merits of a case, the temper of themodern world demands that judges, like men in all walks of public andprivate life, avoid escapism, and squarely and frankly confront even themost controversial and troublesome justiciable problems.

And surely it should be agreed by all supporters and critics of theCourt alike that the least possible justification for the Court to avoid

8. See, e.g., Flast v. Cohen, 392 U.S. 83 (1968).9. U.S. CONST. art. III, § 2, cl. 1.10. A. DE TOCQUEVILLE, DEMOCRACY IN AMERICA 290 (P. Bradley ed. 1954).11. 369 U.S. 186, 209 (1962).

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adjudicating a claim of constitutional right is that the Court may in-jure itself if it decides the case. Is this not another way of saying thatthe Court should avoid unpopular decisions? I have always conceived itto be the first duty of any judge worthy of the name and office to ab-jure popularity in decision making. Lord Mansfield long ago stated thecreed of any worthy judge:

I will not do that which my conscience tells me is wrong upon this occa-sion to gain the huzzas of thousands, or the daily praise of the paperswhich come from the press. I will not avoid doing what I think is right;though it should draw on me the whole artillery of libels; all that false-hood and malice can invent, or the credulity of a deluded populace canswallow. . . . Once for all, let it be understood, "that no endeavors ofthis kind will influence any man who at present sits here."12

The Court should - the Court must - decide the cases and con-troversies properly coming before it, however difficult and controversialthey may be, by doing what the justices are appointed and sworn to do.They must faithfully and impartially discharge and perform all the du-ties of their office and "administer justice . . . according to the best of[their] . . . abilities and understanding, agreeably to the Constitutionand laws of the United States."'13 Judicial timidity is far more likely tobe the undoing of the Court as an institution than the faithful exercise-of judicial responsibility.

There is a myth that the Court coddles criminals. In fact, what theCourt is doing can be justified on strict constitutional and stare decisisgrounds.

But the Court's criminal law decisions are fundamental becausethey reinforce an old principle that where there is a right, that rightwill not remain unenforceable because of the defendant's poverty, igno-rance or lack of remedy. These decisions lie close to the essence of ourgreat constitutional liberties. The controversial criminal law decisionsare designed to give practical effect to the protections afforded by theBill of Rights, 14 and to deal with the realities of the varying situationsconfronting the Court in the area of criminal justice.

12. Rex v. Wilkes, 4 Burr. 2527, 2562, 98 Eng. Rep. 327, 347 (1770).13. 28 U.S.C. § 453 (1970).14. U.S. CoNsT. amends. I-X.

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If I am right that the Court's criminal law decisions have in-creased the effectivensss of our cherished constitutional protectionswithout significantly affecting the crime rate, then one must recognizetheir significance in a democratic society.

As Winston Churchill, then Britain's Home Secretary, said in theHouse of Commons on July 20, 1910:

The mood and temper of the public in regard to the treatment of crimeand criminals is one of the most unfailing tests of any country. A calm,dispassionate recognition of the rights of the accused, and even of theconvicted criminal, against the State - a constant heart-searching by allcharged with the duty of punishment - a desire and eagerness to reha-bilitate in the world of industry those who have paid their due in thehard coinage of punishment: tireless efforts towards the discovery of cur-ative and regenerative processes: unfailing faith that there is a treasure,if you can only find it, in the heart of every man. These are the symbols,which, in the treatment of crime and criminal, mark and measure thestored up strength of a nation and are sign and proof of the living virtuewithin it.15

There is a myth that the Court is against states' rights, obliviousof the great interests of federalism - interests which reflect not onlyour history and traditions but which require constant and vigilant at-tention if we are to avoid over-centralism of our national governmentand if we are to preserve viable local government.

There was considerable substance to this myth during three de-cades early in this century when the Court, in the name of due process,invalidated social and economic legislation of the states as well as thenation. But, as current decisions demonstrate, the Court does not strikedown state or federal legislation because it deems laws of this type un-wise or unsound. The nation and the states are free to experiment, andnever have their interests in federalism been better safeguarded thanthey are now by the Court.

But it is asserted that the Court intervenes far more frequentlythan in the past to protect individuals in their constitutional rightsagainst state action. Particularly is this true, so the argument goes, inconnection with criminal prosecutions. The Court, critics charge, is fol-

15. 19 PARL. DEB., H.C. (5th ser.) 1354 (1910).

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lowing a double standard: it denies the application of the due processclause to economic cases; it applies the clause energetically to casesinvolving impairment of personal liberties.

There is a simple answer to this charge. There is no evidence thatthe framers intended the fifth and fourteenth amendments to deny tothe nation and the states their right of economic experimentation.16

There is every evidence that they intended the Bill of Rights and thefourteenth amendment to safeguard the fundamental personal rightsand liberties of all persons against governmental impairment ordenial. 17

There is a myth, very popular these days, that the Court is dividedinto "liberal" and "conservative" wings, or, as some would put it, into"activists" and those who practice "judicial restraint." Labels of thiskind are convenient but not accurate. Members of the Court, applyinggeneral constitutional provisions, understandably differ on occasion asto their meaning and application. This is inevitable in the interpretationof a document that is both brief and general by a human institutioncomposed of strong-minded and independent members charged with agrave and difficult responsibility. But the inappropriateness of these la-bels becomes apparent upon even the most perfunctory analysis.

A judge may believe, as I did during my tenure on the Court, thatunder the Constitution a court without a jury may not adjudge guilty adefendant charged with serious criminal contempt.1 8 Is he a liberal or aconservative, particularly where the defendant is a governor resistingintegration of a state university? Is he an activist or a believer in judi-cial restraint? Or a judge may refuse to hold a litigant or newspaper incontempt for biting comment on the guilt or innocence of a criminal

16. See Munn v. Illinois, 94 U.S. 113 (1877); Nebbia v. New York, 291 U.S.502 (1934); United States v. Carolene Products Co., 304 U.S. 144 (1938); Olsen v.Nebraska, 313 U.S. 236 (1941); Lincoln Fed. Labor Union v. Northwestern Iron &Metal Co., 335 U.S. 525 (1949); Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421(1952); Williamson v. Lee Optical Co., 348 U.S. 483 (1955); Ferguson v. Skrupa, 372U.S. 726 (1963).

17. See Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798); Meyer v. Nebraska, 262U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Aptheker v. Secre-tary of State, 378 U.S. 500 (1964); Skinner v. Oklahoma, 316 U.S. 535 (1942); Gris-wold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973).

18. United States v. Barnett, 376 U.S. 681, 728 (1964) (Goldberg, J.,dissenting).

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defendant.1 9 Is he an activist or a follower of judicial restraint? Is he aliberal or a conservative? May not the denial of a claim of constitu-tional right be more activist in its effects upon our constitutional struc-ture than the allowance of the claim?

Examples could be multiplied, but inevitably the classification ofthe justices as liberal or conservative, or activist or believer in judicialrestraint, will depend upon the outlook of, or the criteria employed by;the classifier.

I could continue this recital of myths about the Court, but I shallconclude with one that emanates from those who seek to support ratherthan condemn the Court. It is the myth that the Supreme Court isinfallible. A simple and correct answer to this myth is the oft-quotedbon mot of Justice Jackson: "We are not final because we are infallible;we are infallible because we are final."'20

The reality is that, as a human institution, the Court is bound toerr. It is a tribute to its awareness of human frailty, and the extent towhich the Court seeks to avoid mistakes, that so few really serious oneshave been made in the Court's history. And, of course, it is only properto note that reserved to the people is the right to change the course ofthe Court's opinions - right or wrong - through the process of consti-tutional amendment 21

There are more sophisticated mythologists who would seek to pre-serve the illusion of infallibility by banning dissenting opinions. TheCourt, by their lights, would then speak with a single authoritativevoice not to be gainsaid. Some courts in other lands function in thisfashion, burying their differences in a single opinion and judgment. ButI, for one, would not have it this way, for I profoundly believe that inthe long run the Court benefits, and certainly the people do, by the freeexpression of dissenting views. They educate and sometimes eventuallyprevail, and they always demonstrate that our judicial air, like all ofthe air of American life, is - and, God willing, will remain - free.

So long as the Supreme Court sits, myths about it will exist.Myths are not necessarily all or entirely bad as the literature of my-thology proves. But because we must live in this world and not in a

19. United States v. Barnett, 376 U.S. 681 (1964).20. Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring).21. U.S. CONST. art. V.

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make-believe world, myths about the Court or any other human institu-tion must yield to reality. Otherwise our society will be the victim ofour fantasies rather than the servant of our purposes.

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